Mutual Fingerpointing

When David Holland sought information from the University of East Anglia on their contract with Muir Russell, they refused (see CA here)

The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team; it was by way of a public appointment (as is commonplace in these circumstances).

On the basis of the university’s assertion that Muir Russell was a “public” appointment, David Holland sent an FOI request to the Sir Muir Russell Review Group, Box 18, 196 Rose Street, Edinburgh, which had engaged the services of University of Edinburgh personnel under information obtained from the University of Edinburgh (which appears to have destroyed all records pertaining to the Muir Russell review at the request of one of the parties).

Needless to say, Muir Russell refused the FOI request on the basis that the Sir Muir Russell Review was not a “public authority” subject to FOI or EIR regulations:

Dear Mr Holland
I have received your letter, by email, of 16 April asking me to provide you with information in terms of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

I believe that the ICCER team operated very openly and transparently and that a very substantial amount of information about the Review is in the public domain.

I have however taken advice and I am satisfied that I am not, and the Review Team as a whole is not, a public authority for the purposes either of the 2002 Act or the 2004 Regulations. In the circumstances we are not under any legal obligation to make information concerning the Review available to any person under that legislation.

I appreciate that you may be disappointed with this response and I understand that you may decide to refer the matter to the Scottish Information Commissioner.

113 Comments

In other words, since it was a non-contractural, non-public review, then it could not an “independent” review, could it? So just exactly what kind of a review was it? Perhaps M-R could clarify that issue for us.

2 of the 3 Muir Russell recommendations were: handle FOI requests responsibly and make information available to support results. You would think that Muir Russell would be able to remember his pronouncements. But perhaps his brief was to create the most hypocritical whitewash possible?

I don’t see this as much finger pointing as passing the buck and avoidance of responsibility.

The inquiries (all of them) were ersatz, panic-driven exercise in buying time and hoping the whole thing went away. There did not (and still does not) seem to be any understanding of the dynamics that was really happening, which was: “The jig is up; we’ve been caught in outright deception, data fudging, FOI blocking and lying to policy makers (through cherry picking supportive data) and really bad science.”

No one still sees that. Judith Curry is among the few insiders or semi-insiders who woke up to what had happened. But still, her efforts at finding some middle ground is on the pale side of what should have happened.

Heads should have rolled.

But because they missed the BIG picture, they tried to sweep it all under the carpet – and they think that sending inquirers off on wild-goose chases is the best way to mealy-mouth the whole thing.

They still think they are winning that battle.

Delusional?

Misguided?

They not only lost that battle, that battle was the entire war, so they have lost the war. Why? Because they lost the public – anyone who paid attention. And based on the polls since Nov 2009, enough of the public did pay attention.

Now, they pretend that they can go back to where they were – if only this or only that. But they can’t put the toothpaste back in the tube.

Climate science is returning to its historical place – in the closeted garrets of academia. The IPCC has lost its shine and in one or two more go-arounds (each mattering less than the previous one), even they will see they lost their mojo.

The lying caught the Team, and all the king’s horses and all the king’s men… couldn’t get them the monopoly back together again.

No one but themselves believes that they are accomplishing anything with this silliness.

Reminds me of the old “Apres vous, Alphonse” routine, or perhaps, the western comedy with an actor pointing to the right with his left hand and to the left with his right hand saying “They went thatta way!”

He and his team were appointed by, paid by, and the scope of their inquiry limited by, the UEA.

That they carefully avoided the very incriminating questions that everyone wanted asked and were equally frugal in their recording of evidence suggests that they did the job they were paid for in an exemplary fashion.

Unfortunately Messrs McIntire and Holland (and by extension the rest of us) are being beastly in not letting sleeping whitewashes lie.

Beware of UEA slipping in a late application to the Gov. for reimbursement in an attempt to give the Inquiry ‘public’ status, and outlast the 6 month FOI limitation.

The problem with FOIA is that the subject organization often perceives that there are no negative consequences to adopting a policy of ‘reject everything and let the appeals process sort it out’. Think about it from a game theory standpoint — if I reject everything, then x% will just go away (the FOIA requestor will be frustrated and will choose not to appeal), y% will be sustained on appeal, and z% will be over turned on appeal. Of each of the probabilities, x% is by far the largest. Therefore, in aggregate, such a strategy probably saves time and money from the perspective of the requestee.

Re: mpaul (May 5 13:40), you may be right that “reject everything initially” is a tempting strategy, though in my own experience it’s not a universal one. The real problem, however, is the length of time it takes to push a an FOI request through in the UK. From first request to final decision of the ICO takes about two years, and it’s not surprising that many enquirers give up after the first couple of rejections.

As having worked in a public-privat organisation in scotland exposed
to FOISA and having had training on both FOISA and EA I am very sceptical
to the response received. the acts are specifically set up in sucha a way
as to make it difficult if not impossible to sidestep the Foisa and EA rules by
creating privat organisations or outsourcing work.

however it is perfectly legit to refere the request back to the public body as a private organisation(ie the request needs to be channeled through the public body) or to ask permission from the public body before responding.

the EA was even more limited, if memory serves me, in allowing privat
organisations that undertake work on behalf of public bodies to deny information requests.

Hu, I agree with you on jurisdiction – that the Muir Russell Review Group would more logically be subject to English jurisdiction. If Muir Russell had happened to live in Zug or Zaire, one would not seek a remedy offshore. The idea of East Anglia structuring an “offshore” review is an amusing one however.

“Offshore” review – No I don’t think they thought that the review was “offshore” I think that they are working on the premise that the model forecast inundation of East Anglia dictates that UAE is an “offshore” entity.

No, no. The courts teleconnect between UAE and Scotland. In fact, they probably teleconnect to somewhere close to Toronto, so Steve should be able file a suit (or appeal an FOI finding) in Canada, especially given the recent elections there.

I don’t think “offshore” is the correct term here. I think “extraordinary rendition” might be more apt, as extraordinary rendition allows things to be done in an extrajudicial manner in order to acheive a desired result.

It isn’t a matter of jurisdiction. The FOIA entitles citizens to access information held by public authorities. There’s no discrimination based on where some event may have happened. The question is whether Muir Russell’s outfit is a public authority to which the Act applies.

The list of authorities who are required to respond under FOIA is in Schedule 1. You’ll see that it is given in sections relating to England and Wales, and to Northern Ireland. No Scottish authorities are listed, and for good reason. There is a Scottish FOI, and you have to apply under that to Scottish authorities. Russell is in Scotland.

The list does not seem to me to include bodies like the Review group, even in England. I cannot see that the engagement of the Review Group by public appointment in any way makes them a public authority.

I’m not sure that’s quite right, Nick. A ‘public appointment’ is (in almost all cases) made by a publicly accountable body under the FOIA, and remains under the control of that body and subject to the same requirements. The key point is who made the appointment, of course.

What I find very strange is that payments were made to Muir Russell for the review. There must have been authorisation of some kind to make those payments. What was the basis for that authorisation?

What is up Nick? What is wrong with the total disclosure of the workings and findings of an independent inquiry requested by the UK Government into a series of emails to and from a scientific faculty of a UK university?

Just what is it that drives you to question the semantics and technicalities of FOI or EIA? Why does somebody as committed to this issue not want full and unadulterated disclosure? Why do you not want to know the full details?

I truly wish to know why you think that restricting information about the workings between UEA and Muir Russell is a benefit to science and mankind. (never mind the UK citizens who paid for it)

Sorry Nick, this should be a non discussion, there should be no possibility of anybody restricting any details, funding, contract, workings, findings or any other about an independent inquiry requested by the UK Government into a series of emails to and from a scientific faculty of a UK university.

It should by its derivation be subject to a full and automatic disclosure, stage by stage. The fact that it was not then and still is not must be a cause for concern for all involved.

So I ask again, why do you think that restricting information about the workings between UEA and Muir Russell is a benefit to science and mankind. (never mind the UK citizens who paid for it)

It’s important to remember that the Muir Review was not a government enquiry. The review had no “public” status in it’s own right. It did not derive it’s authority from any common law office or public and general act of parliament. It was appointmented by a public authority but it was not even a “public” appointment – an appointment to a common law or statutury office, authority or body, in the sense that UEA have sought to suggest.

UEA have all along sought to pass Muir off as having an authority it never possessed, this has mislead people into believing it was some sort of quasi-judicial body following a quasi-judicial procedure. It was nothing of the sort. To put it in readily understandable language it was a review by management consultants on environmental data handling at CRU. The management consultants were independent contractors. The issue now is to what extent a Public Authority, UEA, can create a chinese wall, impenetrable by FOI legislation, by appointing consultants to carry out it’s management functions on it’s behalf.

Does an independent contractor retained by a public authority to carry out a management function of the public authority itself become subject to FOI at large? I’m an independent contractor and I do work for Public Authorities which is part of their management function and I have no reason to believe that renders me vulnerable to FOI provisions. Insofar as the public authority is entitled to reports and records which I hold then I will produce them to the Public Authority on their request, but any FOI request must be directed to them.

It is an interesting point, to what extent UEA is entitled to working records etc produced by Muir in his consultancy exercise, but it’s a question of private not public law, confused by the absence of any written contractual document setting out what is agreed. What contractual provisions will be implied? Can the ICO decide that since there is a public interest in UEA retaining the right to these documents he will imply a term consonant with the public interest? How would any ICO, English or Scottish, feel about deciding this ice point of contract law?

Re: bobdenton (May 7 03:35),
“How would any ICO, English or Scottish, feel about deciding this ice point of contract law?”
He doesn’t have to. FOI only requires authorities to produce documents that they hold. It doesn’t require them to acquire documents that someone thinks they ought to hold.

I think your analysis is right and as far as FOIA/EIR is concerned it may hang on whether I can persuade the Commissioner that openness and transparency was an implicit term of the contract. If so UEA could be ordered to instruct Russell to hand over to UEA all its unpublished working documents so that UEA can disclose them. It would get interesting if Russell then refused.

If the act empowers the government to compel documents held by a party in country X, but not documents held by a party in country Y, that is a classic jurisdictional problem.

In American law, for example, I can’t sue a resident of Florida in California court, because the California courts have no jurisdiction over the residents of a separate, sovereign state [Florida].

An exception can exist, however, when the Florida party does business in California. [I’ll skip the legal details – this is beginning Civ Pro]

I don’t know how the UK / Scottish laws are interpreted, but application of UK FOIA doesn’t sound crazy to me — especially where there was mention of existence of some sort of corporation to accept payment from UEA.

Re: jim edwards (May 6 13:11),
Jim,
There’s no court involved here. And the government isn’t compelling the production of information relative to any event. That’s why it isn’t a jurisdiction issue (no juris).

It’s a matter of identifying what government structure the Review Group might belong to. If they do belong, for the purposes of the FOIA, then you can apply under the Act applying to that structure (country). And ask about events occurring anywhere – the test is whether they hold the information.

This seems to be moot anyway, since it appears DH did apply under Scottish FOI. If so, he does not appear to be claiming that it acquired PA status as a result of the UEA appointment. UEA isn’t Scottish.

There are two separate types of jurisdiction; do you understand this ?

If Holland decides to pursue this particular request like a british bulldog, then either Russell will comply or Holland will end up in court, asking for an order to produce desired documents. That’s the way laws generally work – application ultimately is enforced through court orders and the power of the state [the police].

Before they get to that point, Russell would be within his rights to argue at intermediate stages that, for example, the Scottish FOI doesn’t apply to him [because, even though Russell may be under the personal jurisdiction of the Scottish courts / authorities, Scottish FOI is inapplicable and English FOI law is outside the subject-matter jurisdiction of Scottish courts / authorities – (hypothetically)…]

Nobody said the government was compelling production, at this point. The whole point of the thread is that Holland isn’t getting what he wants.

You may be right about mootness, although the history of stonewalling is such that I could believe that Russell conveniently ‘assumed’ that Holland meant to apply the Scottish Act, where Holland was silent. Russell has talked to an attorney, according to his letter.

Jim,
Well, it seems DH has to decide whether he’s a british bulldog or a scottish terrier. But there isn’t a jurisdiction issue here. Both “nations”, England/Wales and Scotland, have FOI laws regarding their respective public authorities. The laws identify those authorities, and the question is whether MR’s Review Group is a public authority identified by either Act, and if so, which. If an identification is disputed, the matter is subject to appeal to the relevant Information Commisioner (as MR noted). If that is then disputed, the matter might end up in a court, but that is a long way down the track. And I expect the court would be English or Scottish depending on which Commissioner’s decision is being disputed.

Re: Nick Stokes (May 6 05:52), Nick:
Exactly….and courts virtually always look for “the closer connection…” and so UEA — The University is in England, inquiry was in England, English Law, English Court, English FOI. I can’t believe that this would change since I last dealt with this in a courtroom. What more would you want? You could always take it in front of a judge and see just how curt and to the point they can be.

Will,
The first thing that curt judge would ask is, is the MR Review Group subject to English FOI? Is it a public authority within the meaning of the Act? That is set out in Schedule 1 – which section do you think it comes under?

Re: WillR (May 7 01:03),“Needless to say, Muir Russell refused the FOI request on the basis that the Sir Muir Russell Review was not a “public authority” subject to FOI or EIR regulations:”
It is the subject – the only one I’ve been talking about. Does FOI apply to this Review group? English or Scottish? If not, end of story, legally. If so, then which Schedule it comes under determines what kind (E or S) of judge might eventually hear the matter. Not “closer connection”.

So I ask again, why do you think that restricting information about the workings between UEA and Muir Russell is a benefit to science and mankind.

If you come on Climate Audit Nick and argue about such a narrow technicality (on which I can well imagine you are wrong) without once repudiating the secrecy of the Muir Russell inquiry don’t be surprised that there is so little respect here for those like you trying to argue for a ‘consensus’ point of view.

Why not cut your losses and admit this aspect of this inquiry was deficient. Then argue the bigger points. I predict you’ll find people much more willing to listen.

Re: Richard Drake (May 7 04:22),
No, you are the subject changer here. What are these bigger issues? The post for this thread doesn’t mention any – only whether Muir Russell has to respond to a FOI request.

As far as that request is concerned, I don’t think the minutiae of how UEA disbursed “nearly £300,000″ on the inquiry is a bigger issue – in fact, I think it is piddling.

If they give out such large payments to individuals who are not contractors, and without a contract or scope of work or purchase order, isn’t that illegal even in England? Was there even an invoice? And wouldn’t making a public appointment require some sort of legal paper trail with someone? Or maybe they borrowed Harry’s cloak of invisibility for this trick…he has no need for it anymore….

5. As the Accounting Officer for the University, the Vice Chancellor is responsible for all expenditure by the
University, including research grants. The authority to commit expenditure is delegated to Heads of
Spending Units who may then nominate Authorised Signatories to sign Purchase Orders on behalf of the
University.

6. Authorised Signatories shall be responsible to the Head of Spending Unit for ensuring that all purchases
are made in compliance with this policy and such procedures as are from time to time in force.

The more obscurity and ducking, the more my doubts rise about some vital CRU publications underpinning the IPCC 2007 report. The UEA’s reputation is sinking and sinking: not fair to other high quality and unbiased scientists working there as well.

Perhaps what is needed is a FOI request to UEA requesting any records either formalising or announcing or describing or discussing any aspect of the relationship or the proposed relationship between the university and the ICCER team.

I’ve spent a fair bit of time looking at how Muir Russell might fit into legislation.

If the university is correct in its statement that Muir was a “public appointment” (not a given), then Muir was necessarily appointed to a “public body”. See UK government website on public appointments here:

A public appointment is an appointment to the board of a public body or to a government committee.

“Public bodies” in the UK include “non-departmental public bodies”. (see here ) In addition to relatively permanent non-departmental public bodies, “public bodies” in the UK can include “task forces, ad hoc advisory groups and reviews” – see the UK publication “Public Bodies” – see here – which includes “task forces, ad hoc advisory groups and reviews” within the scope of public bodies:

Since 1980 information about public bodies and the people that serve on them has been brought together and included in the annual Cabinet Office directory Public Bodies. The most recent editions of the publication provide details of all UK Government sponsored bodies, including task forces, ad hoc advisory groups and reviews, in operation as at 31 March each year.

The Muir Russell Review appears to fall squarely within the category “ad hoc advisory groups and reviews”. Merely because it is “ad hoc” doesn’t mean that it isn’t also “public”.

According to the ICO website,FOI applies to public bodies, including “non-departmental advisory group” (EIR appears to be have slightly wider application):

It seems to me that the Muir Russell Review Group was a public body under UK FOI legislation, not Scottish legislation. It was an ad hoc advisory group to a UK institution subject to UK FOI and did not have any role in Scottish public administration. I don’t see that Muir Russell’s Scottish residence or the mailing address of the Review Group is relevant to UK jurisdiction.

I don’t see that Muir Russell’s Scottish residence or the mailing address of the Review Group is relevant to UK jurisdiction.

Perhaps Muir Russell and Nick Stockes mistakenly interpret the term “scot free” as implying an ability to avoid creditors, prosecutors, or FOIA requests simply by stepping across the border into Scotland. In fact, this is a false etymology, which I believed myself until I just now looked it up: a “sceot” is an Old English word for a tax, and so the expression has nothing to do with Scotland (or Dred Scott for that matter).

When I first read this Hu I was playing with the idea of the ‘add hock’ review. Some of this stuff does make one want to take to the drink – and it’s said some Scots don’t need much encouragement. But the pun has laid there, unused, until today. I hereby release it for greater wits to improve under a flexible Berkeley open source licence :)

Dear Mr Holland
I have received your letter, by email, of 16 April asking me to provide you with information in terms of the Freedom of Information (Scotland) Act 2002 and the Environmental Information (Scotland) Regulations 2004.

Perhaps David Holland himself took the wrong track by invoking the Scottish FOI and EI regulations (if Muir Russell is indeed paraphrasing him correctly).

“I have however taken advice and I am satisfied that I am not, and the Review Team as a whole is not, a public authority for the purposes either of the 2002 Act or the 2004 Regulations. In the circumstances we are not under any legal obligation to make information concerning the Review available to any person under that legislation.”

“I am not” a public authority “for the purposes either of the 2002 [Scottish] Act or the 2004 [Scottish] Regulations.”

“the Review Team as a whole is not” a public authority “for the purposes either of the 2002 [Scottish] Act or the 2004 [Scottish] Regulations.”

But would Russell or an hypothetical ‘review corporation’ be a public authority under alternate [UK] laws or regulationsm ?

[I don’t assume that the advice Russell is relaying re: applicability of Scottish law is correct…]

There’s provision under Secs 4 and 5 of the Act for the Chancellor (or Sec/State) to add entities to the list of public authorities in the Schedule. But he actually has to do it.

And there seems to be sensitivity about adding Scottish entities, with a specific bar in Sec 80. It even says:(1)No order may be made under section 4(1) or 5 in relation to any of the bodies specified in subsection (2); and the power conferred by section 74(3) does not include power to make provision in relation to information held by any of those bodies.

(2)The bodies referred to in subsection (1) are—
(a)the Scottish Parliament,
(b)any part of the Scottish Administration,
(c)the Scottish Parliamentary Corporate Body, or
(d)any Scottish public authority with mixed functions or no reserved functions (within the meaning of the M1Scotland Act 1998).

But it seems this is moot, since David H did apply under Scottish FOI.

Muir may well have been appointed to a public body, but it was UEA that did the appointing, and they indeed are subject to FOIA. The appointee doesn’t acquire that status. Kerry Emanuel is not a UK public authority.

The possible purchase of statutory provisions on UEA and Muir can be summarised as follows:

FOIA 2000/2002 – parallel provisions in England and Scotland.

Sch 1 Public Authority – England, UEA – group membership – Scotland, Muir Not.
-Part V1 (England) Other Public Bodies and Offices – Muir not listed and there is no catch-all provision. Scotland, Other – again Muir not listed and no catch-all provision.

Control Provision – England, “For the purposes of this Act, information is held by a public authority if “ – “it is held by another person on behalf of the authority.” So, does UEA have a contractual right to obtain copies of the documents sought from Muir – hence the interest in the contractual document. Information held by Muir, wherever domiciled, would be under the power or control of UEA would be subject to FOIA and UEA would be the body to produce it. – appeal to English ICO.

EIR2004 ( Made under European Communities Act 1972 – again parallel provisions in England and Scotland which are the same for these purposes but juristictions are exclusive).

2 (2) – UEA – Group membership (England) – appeal to English ICO
Muir – may caught by a catcall provision (Scotland)- “any other body or other person, that carries out functions of public administration” – appeal to Scottish ICO.
or control provision – England, “any other body or other person, that is under the control of” (UEA)”and “exercises functions of a public nature relating to the environment” or “ provides public services relating to the environment” – appeal to English ICO.

Muir claims to be domiciled in Scotland. If applicable at all to Muir it only applies to the catch-all provision not control provision and the remedy is to seek review by both the English and Scottish Information Commissioners. There’s no need to decide where Muir is domiciled, let the authorities do that. The provisions for disclosure are the same, Muir however has far more pull in Scotland.

Muir, The Muir Group, The Independent Review Panel, the creature by whatever name it’s called appears to be simply an independent contractor. Just as Stains Out Laundry Services are independent contractors brought in to launder the common room table linen, Muir is an independent contractor brought in to launder the reputation of CRU.

Though Stains Out is “under the control of” (UEA)”and “exercises functions of a public nature relating to the environment” and “ provides public services relating to the environment”, I do not see that Stains Out constitute a Public Body. How is Muir to be distinguished from Stains Out?

Does Muir really have more pull in Scotland? I thought his name was mud there after he was effectively blamed for the Holyrood building fiasco. However it is possible that the Scots could close ranks if they felt he was being harassed by Sassenachs.

From Wiki, he attracted much criticism for his handling of the 2006 lecturers’ strike, as well as attempts to close the University’s Crichton Campus in Dumfries and for receiving pay rises which were much greater than the rate of inflation.

I will report the Russell refusal to to both the UK and Scottish Commissioners, as I think the comments here do raise some doubt in my mind as to jurisdiction. As a thought experiment, suppose UEA asked the the Royal Society of Edinburgh to set up a Panel to investigate Climategate – it was almost an RSE show.

The RSE say they will act as if the Act and Regs apply to them but what if they changed their mind when faced with an embarrassing disclosure? I do not think an emboldened Scottish Parliament and its judiciary would be take kindly to the UK Commissioner giving decision notices north of the border.

On the other, and I think more promising, matter of the contract between UEA and Russell, and whether UEA, and therefore the public, has a right to see Russell’s working documents, I will argue that openness and transparency is an implicit term of any independent review of matters relating to freedom of information and a public authority. Moreover the statements of Acton and Russell before the Parliamentary Select Committee in March 2010 strongly indicated that they both believed that to be the case. The Committee Report clearly presumed that it was.

A final question to raise here is whether judicial review has any potential power in this matter? Greenpeace forced a re-run of the government’s Nuclear consultation based largely on the Aarhus Convention. It may be a pipe dream but if UEA had to get the job done right as the government were forced to, it would put an end to all this nonsense. We would have to get a big tip jar though.

Re: David Holland (May 7 04:49),
The jurisdiction issue is your choice. If you pursue it under UK (England/Wales) FOIA, you will geal with the UK ICO, and ultimately English courts, if you keep going. If you pursue it under Scottish FOI, you will deal with the Scottish ICO and courts. I guess you can choose wherever you think you have a better case.

I’m not sure that’s right. One can choose where to submit a case but both the English and Scottish courts would look very carefully at a case where there are devolved powers because the the first line of any defence could be to challenge jurisdiction. I think only one court will have jurisdiction even if it needs the Supreme Court to say which.

My current working hypothesis is that Russell was a contractor to UEA. The Sir Muir Russell Review Group was a “trading as” style. I doubt it is registered anywhere as a corporate entity. I submitted a complaint to the ICO on 15 April appealing UEA’s refusal on FOI_11-022. This I think is my best line of attack, but as I said will report Russell’s position to both Commissioners.

I think apart from the issue of climate change and the EIR there is a fundamental issue as to whether a publicly funded investigation can lawfully edit and more importantly conceal the editing of an evidence submission which they had publicly requested, except for reasons of national security, and then put it to an a public authority for their response without any indication that it was edited. In fact, the evidence is that the Review sought to disguise both the source of and the editing of the submission.

This could not have been on the grounds that what was left of my submission was potentially defamatory because they went ahead and published it. While one or two bits that they redacted could be potentially defamatory, it has all been stated on the Internet and not even Michael Mann has threatened me with legal action.

My issue is not with the redactions made by Russell Review, if they believed them to be defamatory but that they did not show to the public and UEA that they had redacted 75% of my submission, which no reasonable person could have believed was all on the grounds that it was all defamatory. This is what Russell should have put on his website on 6 May 2010 and what Boulton should sent as his annex to UEA. The public, and hopefully the mainstream media could then have seen how little was being investigated and found out what was left out and why.

The “smoking gun” is the editing of the original IPCC WGI Publication Deadline instruction that I had cited with quote marks in the separate paragraphs as it was originally issued. The removal of a paragraph break and one of my quote marks was not to avoid any defamation charges but to facilitate the claim by Briffa(allegedly) and Osborn that there was no deadline for papers to be “in press” but a rather confused and misleading one with two dates in it. It is unbelievable to me that the editing was done by someone who did not understand exactly what they were doing.

I put “allegedly” after Briffa because I find it hard to believe that he went along willingly if at all with this subterfuge and had the time to do it if he had not started by 12 May. The answer might lie in these letters and those of Boulton on pages 23 and 24 of B&O’s evidence.

Why did Boulton not email Briffa directly?
In an independent review why was this most critical piece of evidence routed through Trevor Davies’ office?
Did Briffa do all the re-editing of Boulton’s annex between 12 and 19 May?
What was the attachment Briffa sent to Overpeck on 13 May? Was it Boulton’s annex or Briffa’s version of it or my submission?

Re: Hu McCulloch (May 7 11:31),
Yes, I specifically referred to Scottish Law because his address was in Edinburgh, as soon as my complaint re UEA on the Review papers has a Case Officer assigned I will refer this to him or her.

I would guess that the point of these threads and conversations is to either shame bodies into being more transparent (and in a number of cases doing what they claim in their rather righteous proclamations of their organizations intentions) and creating sufficient bad PR to move them to be more revealing.

Absent any positive effects from these more gentle urgings, I cannot see getting any results short of litigation. These posts are revealing that these organizations are hypocritically opaque and in what they can avoid doing under their own rationalizations (sans suing). The back and forth legalese amongst critics and defenders in these posts does, however, in my view, shroud the more important point which is why are not these organizations more forthcoming voluntarily. What they do is much more in the domain of a political organization than a science related one.

They keep getting presented with opportunities to come clean, but they resolutely insist on digging that hole deeper and deeper. Every time they stonewall, they are demanding to take another public spanking.

Keep sending them FOIA requests. Each one represents a chance for them to stop the embarrassment. My wager is that they will continue to demand the embarrassment of the public spankings.

Sorry I posted this also on an earlier piece.
“their ability to attract research”

The following link is to the CRU’s research grants page.http://www.cru.uea.ac.uk/cru/research/grants.htm
Dr Briffa and others have received a grant of £266 000 for two years work on the subject of “The dendroclimatic divergence phenomenon: reassessment of causes and implications for climate reconstruction” Granted 2010

Dr Jones has received £318 000 EURO4M – European Reanalysis and Observations for Monitoring Granted 2010.

What appears interesting is that they are both being rewarded/provided grants to deal with their own past failures.

I may be wrong but it would appear that Mr McIntyre should receive some of this money.

I really would like to know what they both will deliver for half a million pounds and the remaining one million pounds?

David Holland @ Posted May 7, 2011 at 8:18 AM “My current working hypothesis is that Russell was a contractor to UEA. The Sir Muir Russell Review Group was a “trading as” style. I doubt it is registered anywhere as a corporate entity”.

That is why I mentioned taxation. Monies changed hands in a way that is plausibly taxable. The Taxation Office should have a list of the types of structures that attract tax and those that do not. From such as list, one might be able to glean a more exact description of structure, then use it for FOI. Bit of a long shot, but might be a help, especially if through serendipity it is found that no tax was paid when it could have been.

I’m not encouraging digging into private lives, just into categories of business structures.

If he was, he will likely get to deduct all of the money paid to lawyers, public relations firms, hotels, printers, fellow review nenbers, etc, as necessary business expenses. He would only have to pay taxes on the net amount he actually profited.

If Russell wasn’t operating a business in the UK, he probably has personal tax liability for the entire gross amount paid by UEA to the Russell Review Group for the investigation and report.

A public appointment is an appointment to the board of a public body. These are bodies set up by government ministers, but are not part of a government department. They provide independent advice or deliver some aspect of public service.Public bodies operate independently of ministers, although ministers remain ultimately responsible for them.
Some appointments are paid and expenses like travel are usually reimbursed.
The way that the best candidate is chosen depends on the post. However, in general:
• all appointments are made on merit, based on your talents and skills
• an independent assessor will be involved throughout to make sure the process is fair, open and transparent
• the criteria for the post (the skills and qualities necessary) will be made clear to you – either in the original advertisement or in an information pack (on request)
• you will be asked to complete an application form to show how your skills and qualities suit the post you are applying for
• your application will be assessed – this may involve a formal ‘sift’ and then an interview, or just an informal interview
• the minister will make the final selection from those recommended by the interview panel
• the successful candidate will be sent a letter of appointment and all other applicants informed

(Surely this provides the key? Any FOI request needs to be via the relevant government minister?)

Steve: is it your view that UEA made an untrue statement when they said Muir Russell was a “public appointment”?

According to the definition cited by Matthu the Muir Russell enquiry team could not be public body, because it was not set up by a government minister.

And therefore the appointment of Muir Russell and his colleagues were not, according to HMG, public appointments. If UEA claim – as I recall they do – that they were I would ask Mr Palmer, the hapless FOI man at UEA, to explain – citing HMG’s view – precisely what he (or rather his legal minders) mean when they make this assertion.

Coomon sense suggests that it is perverse to call these public appointments; they were nothing of the sort, and were private arrangements made by UEA on commercial terms.

Some readers are missing the significance of Muir Russell’s assertion that their review is not a “public body”.

It was the University of East Anglia who raised the excuse that the Muir Russell review was a “public appointment” as a “reason” to refuse FOI. Now Muir Russell has stated that they were not a “public body”.3

If the Muir Russell review was simply a private contractor, then this affects UEA’s ability to avoid FOI.

Ultimately, the issue to be presented to the ICO will be a choice. If the Muir Russell Review is a private contractor, as Muir Russell says (in effect), then the FOI’s to the university should succeed. If Muir Russell is a public body, then the FOIs to Muir Russell should succeed.

In reply to Steve (who asked whether it is my view that UEA made an untrue statement when they said Muir Russell was a “public appointment”)

No. I think Muir Russell was appointed by a government minister (not sure whether even a chief scientific adviser can make this appointment?) to the board of a public body (which would operate independently of ministers, although ministers remain ultimately responsible for it). The body was probably set-up by the government.

This seems to tie in with all that we know. It almost certaily falls under UK legislation (rather than Scottish legislation) whoich is why David Holland’s FOI request failed.

Any FOI request relating to this appointment should be directed at the government itself.

My point is that FOI request should be directed at the UK government, not the UEA. This is because public appointments are made gy a government minister by making the final selection from amongst those recommended by the interview panel (presumably John Beddington).

(Presumably the minister involved would be one from the previous i.e. Labour government, as the government changed in May 2010.)

The legal jousting about public/private is significant as it affects the ability to enforce FOIA requests. But, in the bigger scheme of things, the university’s PR incompetence is simply exacerbating its decline.

Climategate raised significant questions about possible corruption. It responded by commissioning an investigation whose purpose was to assure the public of the its integrity. Now it insists on hiding behind word games and strange statutory constructions in an effort to avoid any scrutiny by the public.

What a great way to convince the public of its integrity!

[On the competence meter — I don’t think these folks could manage to walk the dog without tracking excrement back in the house.]

It beggars belief that anyone would think that using linguistic contortions, semantic hair-splitting and sophistry to keep information secret at any cost is a good way to persuade people that you don’t have something to be ashamed of.

I admit I am ignorant of British law. But Nick’s notion that the UAE inquiry was outside the public domain seems incredibly naive.
I don’t get the impression Dave H is seeking resolution in the courts, but if he were, the arguments would not be limited FOI guidelines.

In the U.S., an attorney would not be hindered in the least by limitations in FOI procedure. They could use any argument claiming obfuscation or public deception or any means to pierce the secrecy. For example: UAE is a public body. UAE used outside contracts and private contractors to evade the public’s right to information.

If one were to presume they were protected by the language of FOI precedure, they would be sorely disappointed.

Re: Keith Herbert (May 9 20:27),“But Nick’s notion that the UAE inquiry was outside the public domain seems incredibly naive.”
That’s not my notion at all. I’m simply saying that MR is likely right in saying that the MR Review Group is not a public authority.

One of the odd things in this discussion is that no-one seems to have tried to find out what that entity actually is. All we know is the name and address, and that it engaged, and presumably paid, some U Edingurgh students.

My guess is that it is a corporate entity created by MR to deal with the tax issues raised by Jim Edwards. As such, it probably received the payments from UEA. That doesn’t make it a public authority wrt FOI.

In any case, MR said it doesn’t, and he isn’t incredibly naive. He says that those who disagree can take it up with the ICO, which is the correct remedy. I don’t see anyone doing that.

Steve – Nick, puh-leeze. Let David Holland catch his breath. I’m sure that he’ll ask the ICO to determine whether the East Anglia is wrong in saying that Muir Russell was a public appointment i.e. to a public body, or whether Muir Russell is wrong in saying that the review was not a Scottish public body and/or not disclosing that the review was a UK public body. I’m sure that the matter will get to the ICO and he’ll determine which one of them was wrong and which of them is obliged to comply with FOI.

Steve, that’s muddled. I don’t believe any ICO will “determine whether the East Anglia is wrong in saying that Muir Russell was a public appointment”. It’s not in their remit. What a Scottish ICO could do is determine whether the MR Review Group is a Scottish public authority within the meaning of their FOI. A quite different issue, subject to detailed guidelines which no-one seems to want to look at.

If DH wants to invoke UK FOIA (he hasn’t yet), and MR declines that, as I assume he would, then the UK ICO could determine whether the MR Review Group is a UK public authority within the meaning of FOIA.

I don’t believe anyone will determine “which one of them was wrong”. If neither ICO can identify the Review Group as a public authority within their FOI system, there’s nothing more they can say.

But I really think the discussion is pointless unless someone can provide evidence of what kind of entity this MR Review Group actually is.

“I don’t believe any ICO will “determine whether the East Anglia is wrong in saying that Muir Russell was a public appointment”. It’s not in their remit.”

If the UEA said that it was when patently it wasn’t (eg. no evidence that it was and plenty of compelling evidence that it could not have been because it was something else) then it’s entirely within the remit of the ICO to say so.

“But I really think the discussion is pointless unless someone can provide evidence of what kind of entity this MR Review Group actually is.”

Its one of Muir’s trading names, he’s used a couple. Nothing to suggest otherwise.

The only real question is whether he and his group/panel hold information on behalf of UEA. I’m not aware that an FOIA/EIR request has been made to UEA specifically requesting all records held by Muir, trading under whatever name,of a type and nature that would have been made by UEA in performance of its management functions, had it not delegated the task to Muir, and are now held by Muir, as a matter of law and public policy, on behalf of UEA.

It would be best to make all parties aware that you are raising a public policy point about ownership of records in possession of “consultants” to whom performance of the management functions of a public authority is delegated, at the outset.

Public bodies should give people information and, if appropriate, advice that is clear, accurate, complete, relevant and timely.

Public bodies should be open and truthful when accounting for their decisions and actions. They should state their criteria for decision making and give reasons for their decisions.

Public bodies should create and maintain reliable and usable records as evidence of their activities. They should manage records in line with recognised standards to ensure that they can be retrieved and that they are kept for as long as there is a statutory duty or business need.

Public bodies should give people information and, if appropriate, advice that is clear, accurate, complete, relevant and timely.

Public bodies should be open and truthful when accounting for their decisions and actions. They should state their criteria for decision making and give reasons for their decisions.

Public bodies should create and maintain reliable and usable records as evidence of their activities. They should manage records in line with recognised standards to ensure that they can be retrieved and that they are kept for as long as there is a statutory duty or business need.

If no gov minister appointed MR, then it is not a public body (or whatever your call it). For UEA to assert they did not have a contract with MR is only true to the extent that they did not write a paper contract. At least in USA, a verbal & email agreement to do work for a fee is a “contract” which is enforceable (though not as enforceable as a true paper purchase order) and would make MR (& partners) subcontractors or consultants. Both parties left themselves open to trouble by being so casual, but who believes that such an agreement is not a contract? Amazing.

Actually, the verbal agreement, alone, is just as enforceable as a 100-page written and notarized contract.

There are a few agreements that, generally, must be written to be enforced, like sales of real property, sales of goods exceeding $1500, or promises to provide services that are expected to take more than a year to complete.

What’s been troubling me for some time is the opinion that you seem to share with several others, that opinion sympathizing with presumed scientists who are reluctant to show their work. Yah. Try that in industry. Or maybe with the EPA, with the toxicity measurements of your plant’s effluent. I guess in your mind, the end, whatever that is, will justify the obfuscatory means.

Spending Units must consult with the Purchasing Office on any purchase (or grouping of similar purchases) where the estimated value (excluding VAT) is £20,000 or more. Such consultation is intended to agree the method of procurement, tender list, conditions of contract and criteria for appraisal of tenders.

Was this done?

And then there’s this:

The Registrar & Secretary shall maintain a register containing a declaration by members of Council and staff with authority to commit expenditure in excess of £50,000 on goods and services, of all commercial interests of themselves and close relatives in any organisation which is a supplier or potential supplier to the University.

A logical next step would be to send a FOIA to the chief procurement officer at the UEA asking for the method of procurement, the purchase order number for these services, the name of the contracting entity, their tax ID number and the name of the UEA official who approved the procurement.

Thanks for the link Matthu, I’ll stand down awaiting the response to Andrew.

As I was think about this last night, its possible that an “independent donor” paid for the review. This would not be uncommon in a university setting. The donor(s) could set up a fund and the fees would get disbursed directly from the fund to MR, bypassing the university’s books.